Religious Conservatives Misjudged Court

By Frederick Mark Gedicks. Frederick Mark Gedicks is a professor of law . | The Christian Science Monitor, July 18, 1991 | Go to article overview

Religious Conservatives Misjudged Court


Frederick Mark Gedicks. Frederick Mark Gedicks is a professor of law ., The Christian Science Monitor


IN the early 1970s, when the Christian right was only a few voices crying in the wilderness, religious conservatives dreamed of a day when conservatives would control the Supreme Court. That day has finally arrived. With the elevation of William Rehnquist to chief justice, and four (soon to be five) appointments by Presidents Reagan and Bush, those on the right now dominate the court.

The conservatives on the Supreme Court have significantly advanced the religious conservative agenda during the past five years. Roe v. Wade has been seriously undermined and is poised to topple. The court refused to accord constitutional protection to homosexual rights. Government sponsorship of religious activities has been repeatedly approved by the court, and last term it even granted prayer a cautious reentry into public schools.

But many religious conservatives failed to notice less congenial developments during these years. The court held that the "free exercise" clause did not exempt an orthodox Jewish military officer from regulations that prevented him from wearing a yarmulke with his uniform; the majority worried that permitting the yarmulke might require the military to allow cowboy hats as well. In a subsequent case, it found that the free exercise clause did not prevent the government from building a logging road near a sacred Native American worship site, even as it acknowledged that the road would have a "devastating" impact on the tribe's religious practices.

In another case, the court determined that the free exercise clause did not exempt a church's sale of Bibles from a state general sales tax, because churches were not specifically targeted by the tax. The court applied the coup de gr 137ce in 1990 by announcing (in the so-called "peyote decision") that the free exercise clause does not protect religious organizations and individuals from the effects of any law of general application, no matter how great its burden on religious exercise and no matter how trivial the government's reason for applying the law to believers.

The repeal of free exercise rights by the new "conservative" Supreme Court shows how irrelevant partisan labels have become to religious freedom. Politicians are largely divided by varying commitments to "statism" and "libertarianism." A statist usually supports government regulation; a libertarian generally opposes it. Political conservatives (and especially religious conservatives) tend to be libertarian on business matters and statist on moral issues; political liberals tend to be the opposite. On religious freedom, however, there is no such pattern; free exercise statists and libertarians are scattered across the political spectrum.

The mistake of religious conservatives has been their uncritical assumption that secular conservatives are consistently libertarian when it comes to religious free exercise. Events have proven otherwise. The conservative bloc on the Supreme Court is statist with respect to religious freedom, meaning that it rarely stands on the side of believers against the government. Indeed, believers should expect little from a court that confuses a yarmulke with a cowboy hat, that deems the destruction of religious culture an acceptable cost of road-building, and that fails to see the coercion in government taxation of religious activities. …

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